Grand jury dings city of Berkeley on email transparency

An Alameda County grand jury has criticized the city of Berkeley’s approach to municipal emails, which are automatically purged after 90 days unless employees manually take steps to save them.

The grand jury report, released Tuesday, noted that Berkeley is one of just four cities in Alameda County that does not automatically archive emails and keep them for the two years required by the state for most public records.

The report urged the retention of all city emails for at least two years.

According to the report, city of Berkeley employees “must examine all email they receive with the complicated rules of the PRA [Public Records Act] in mind. They must then take the time to individually save or print each public record prior to its being automatically purged from the email server after 90 days.”

The report also called out Newark, which automatically purges deleted and sent emails after just 30 days, and other email in the inbox after 60 days; Pleasanton, which purges unsaved email after 60 days; and Hayward, which does the same, “except for those of elected officials and higher-level staff that are saved for longer periods.”

The authors note: “The Grand Jury is troubled by these policies. The Grand Jury learned of many complaints by public employees that they neither have the expertise nor the time to make appropriate decisions to save these documents.”

According to the report, automatically archiving the messages offers protection against the inappropriate destruction of public documents, whether it’s accidental, negligent or intentional. Policies that call for manual practices to save emails are flawed, the authors write.

“Without diligent and impartial efforts by each city employee and elected officials, key documents are lost forever,” the authors noted. “The public would have no access to retrace crucial decisions and even wrongdoing. It is poor policy to give potential investigative targets the control over what information is saved and released.”

Cities are each allowed individually to interpret the state’s Public Records Act, and set their own retention rules, according to the report.

Berkeley’s practices are not illegal, according to the report, but “are inconsistent with the spirit of the California Public Records Act and the state’s records retention statute.”

The Public Records Act allows citizens to access public records and help provide public oversight of decision-making. Public records, including emails, can play a critical role to help “explain how and why important decisions are made.”

According to the city’s Open Data portal, 110 Public Records Act requests have been made through Berkeley’s 311 system in the past 60 days. Ninety-one of them have been closed.

Not all municipal emails are releasable, according to the grand jury report. Medical and personnel records are kept confidential due to privacy rights. There are also other exceptions related to attorney-client discussions, preliminary drafts, and documents that could reveal the so-called deliberative process.

The city of Berkeley is alone, according to the report, in defining emails under its administrative regulations “as being ‘generally preliminary drafts’ and states emails shall be deleted as soon as the information is no longer required,” according to the grand jury.

The report said jurors were “concerned” about that element of Berkeley’s approach to emails.

Berkeleyside has requested comment from the city and will update this story if it is provided. (Scroll down to see the city’s response.)

The grand jury made the following recommendations for best practices to ensure transparency in public records:

Conduct business only on city issued email accounts

Eliminate the use of email relays to private email accounts

Preserve all emails for a minimum of two years

Make public records easily accessible

UPDATE, 4:20 p.m. The city of Berkeley provided the following statement. It appears below in full.

The City routinely discloses emails as part of public records requests. However, the Public Records Act, which govern disclosure of records, is distinct from the law that governs records retention (Government Code section 34090). Section 34090 is 40 years old, and we agree that the legislature may want to revisit this and examine the costs, mechanisms and interplay between these laws. The City is currently in line with what many other cities and government agencies do.

We’re not aware of any cases that would subject every email and every piece of paper of all government agencies in California to Government Code 34090, which specifies which records should be retained. If it applies to every email, it would apply to the paper equivalent of emails – which is every piece of paper – including post-it notes, telephone messages, or scraps of paper. We would be surprised if every agency in California has kept each of these types of documents for two years since 1975.

The City’s compliance with the Public Records Act is rigorous, but that means it takes time. The volume of email that’s sent, received, cc’d, bcc’d, spam and junk mail is voluminous, totaling thousands of messages per day. This interpretation would mean that an email sent to one person and cc’d to 8 others would require 10 copies.

Public Records Act compliance requires not just storage, but also retrieval and individual review by staff and then the City Attorney’s office to prevent disclosure of confidential information, such as the health care information of our clients or financial data of taxpayers. To undergo this type of review process for every email sent, received, cc’d for up to two years or otherwise copied digitally is an expense that would ultimately be borne by taxpayers. It’s an open question whether that’s a smart use of limited funds.

Topics in the report (as described in a statement released by the DA’s office) include: